Director, Project on the Foundations of Private Law

Biography

Henry E. Smith is the Fessenden Professor of Law at Harvard Law School, where he directs the Project on the Foundations of Private Law. Previously, he taught at the Northwestern University School of Law and was the Fred A. Johnston Professor of Property and Environmental Law at Yale Law School. He holds an A.B. from Harvard, a Ph.D. in Linguistics from Stanford, and a J.D. from Yale. After law school he clerked for the Hon. Ralph K. Winter, United States Court of Appeals for the Second Circuit. Smith has written primarily on the law and economics of property and intellectual property, with a focus on how property-related institutions lower information costs and constrain strategic behavior. He teaches primarily in the areas of property, intellectual property, natural resources, remedies, and law and economics. His books include The Oxford Introductions to U.S. Law: Property (2010, coauthored with Thomas W. Merrill), Property: Principles and Policies (3d ed., 2017, coauthored with Thomas W. Merrill), and Principles of Patent Law (7th ed., 2018, co-authored with John M. Golden, F. Scott Kieff, and Pauline Newman). He is the co-editor of The Research Handbook on the Economics of Property Law (2011, with Kenneth Ayotte), Philosophical Foundations of Property Law (2013, with James Penner), and Perspectives on Property Law (4th ed., 2014, with Robert C. Ellickson and Carol M. Rose). In 2015-2016, Smith served as the President of the Society for Institutional and Organizational Economics, and in 2014, the American Law Institute named him Reporter for a Fourth Restatement of Property.

The law of Equity, a latecomer to the field of private law theory, raises fundamental questions about the relationships between law and morality, the nature of rights, and the extent to which we are willing to compromise on the rule of law ideal to achieve social goals. In this volume, leading scholars come together to address these and other questions about underlying principles of Equity and its relationship to the common law: What relationships, if any, are there between the legal, philosophical, and moral senses of 'equity'? Does Equity form a second-order constraint on law? If so, is its operation at odds with the rule of law? Do the various theories of Equity require some kind of separation of law and equity-and, if they do, what kind of separation? The volume further sheds light on some of the most topical questions of jurisprudence that are embedded in the debate around 'fusion'.

Wesley Hohfeld’s scheme of jural relations possesses two fundamental strengths. First, the legal relations tend to correspond closely to potential legal results availing between individual persons – who can sue whom for what. Second, the system of “fundamental” relations possesses a symmetry and generality that made it attractive to the Realists as a springboard to their approach to law. In this paper we argue that Hohfeld’s scheme is incomplete: without more, the legal relations identified by Hohfeld do not scale up properly. Instead of being mere aggregates of more basic relations, complex relations and legal doctrines are structured and interact as a system. Activities that belong at the mid-level between the individual and large populations are most difficult to capture. What is required is a formulation of the legal relations that connects the micro of parties and the macro of the legal system at the level of society. The adoption by the Legal Realists of Hohfeld’s incomplete scheme built a gap between the micro and the macro into most subsequent American theorizing about private law. By contrast, other pre- and non-Realist versions of the broadly “Hohfeldian” program, and in particular that of Albert Kocourek, pay more attention to realistic, “economical” methods of delineating legal relations. These analytical but less reductionist formulations “scale up” better than the conventional picture, and can inspire new theories that explain more of the emergent properties of the legal system.

Avoiding the reduction of property to a bundle or rights or to the working out of a single master principle, the architectural theory of property sees property as an integrated system or structure anchored in certain unifying principles. Because our world is neither chaotic nor additively simple, property law and institutions must achieve their plural ends in a fashion that manages the inherent complexity of the interaction of valued resource attributes and human actions. In managing complexity, some of the law’s structures receive functional explanations and justifications, which can be different from the explanations and justifications that apply to the system as a whole. In working as a whole, the system exhibits a number of tightly interwoven design principles, including the centrality of things, rights to exclude and possession, hybrids of exclusion and governance, modularity, differential formalism, standardization and the numerus clausus, and “property rule” protection and equity. The architectural approach allows us to revisit some basic questions in property theory and to capture the dyanamic reality of property law and institutions.

The fusion of law and equity in common law systems was a crucial moment in the development of the modern law. Common law and equity were historically the two principal sources of rules and remedies in the judge-made law of England, and this bifurcated system travelled to other countries whose legal systems were derived from the English legal system. The division of law and equity – their fission – was a pivotal legal development and is a feature of most common law systems. The fusion of the common law and equity has brought about major structural, institutional and juridical changes within the common law tradition. In this volume, leading scholars undertake historical, comparative, doctrinal and theoretical analysis that aims to shed light on the ways in which law and equity have fused, and the ways in which they have remained distinct even in a 'post-fusion' world.
Brings together comparative, doctrinal, historical and theoretical analyses of equity in a single volume, providing multiple perspectives on the issue.
Analyses the fusion of law and equity in various jurisdictions, including Australia, Canada, England, Scotland, and the U.S. allowing readers to gain insights into their domestic legal systems by contrasting developments in others.
Provides insights into the experiences of fusion, merger and fission of law and equity in different jurisdictions and discusses the misunderstandings about the modern relation of law to equity.

Henry E. Smith, Complexity and the Cathedral: Making Law and Economics More Calabresian, 48 Eur. J.L & Econ. 43 (2019).

Categories:

Disciplinary Perspectives & Law

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Property Law

Sub-Categories:

Law & Economics

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Property Rights

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Type: Article

Abstract

This article argues that Calabresi and Melamed’s “Cathedral” framework of property rules, liability rules, and inalienability rules needs to be extended using the tools of complex systems theory in order to capture important institutional features of the law. As an applied field, law and economics looks to law in choosing the appropriate analytical tools from economics—something that Calabresi has identified (in strong form) as law and economics as opposed to economic analysis of law. Recognizing law as a complex system requires a rethinking of some Realist-inspired assumptions that underpin economically inspired analysis of law. These assumptions include a preference for narrow, concrete concepts and a skepticism about traditional doctrines and baselines—and ultimately Legal Realism’s extreme nominalism and the strong bundle of rights picture of property. The article shows how the Calabresi and Melamed (C&M) framework exhibits gaps that can be addressed by systems theory; these include narrow entitlements to engage in specific activities, liability rules that allow an affected party to buy out an activity (Rule 4), opportunistic behavior by parties that destabilizes liability rules, and the role of equity as an institutional response. Extending the C&M framework to treat it as a system helps prevent the C&M framework from flattening the law out. If we supplement the C&M framework to take account of law as a system, we can bring it closer to Calabresian law and economics.

Henry E. Smith, Restating the Architecture of Property, in 10 About Modern Studies in Property Law (Ben McFarlane & Sinéad Agnew eds., 2019).

Categories:

Property Law

Sub-Categories:

Personal Property

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Real Estate

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Type: Book

Abstract

Property law has proven difficult to restate, with none of the American Law Institute’s previous Restatements coming close to covering the full breadth of this area. In addition to trying to fill this gap, those working on the current Fourth Restatement aim to capture the architecture of property. In the terms of complex systems theory, a Restatement should reflect the arrangement and interactions, the groupings, and the coherence (sometimes) of property law, rather than treating it as a heap of full detachable rules and components. Conventional strong versions of the bundle of rights picture of property, reinforced by the nature of the Restatement process, make it difficult to address property as a complex system. Using examples of possession and the property torts, the paper shows how a Restatement can begin to incorporate property’s architecture and why it matters to the operation and the development of the law.

This article utilizes a unique data set of property laws in 119 jurisdictions in the world to test convergence/divergence theories in comparative property law. Our theory predicts that first, the structure of property law among all jurisdictions in the world will converge, or is similar since some time in the distant past, as they all face the same, positive transaction costs in delineating property rights. Second, our theory posits that the style of property law will tend to converge when the doctrines in question are isolated, but diverge when they are interconnected. Our data and descriptive analysis support the theory. Doctrines regarding possession, sales, condominium, tenancy in common, and limited property rights serve as prominent examples.

Equity and Tort appear to be strangers. Beyond historically making equitable relief available in some cases, equity did not intervene in tort law to the extent it did in contract and some aspects of property. And yet substantive equity focuses on wrongful conduct and affords persons the opportunity to seek remedies for such conduct through the courts. Are there ‘equitable wrongs’, and, if so, how if at all do they differ from torts? We focus on a particular function loosely associated with historic equity jurisdiction: equity supplements the law where it fails to address problems that are difficult to handle on the same ‘level’ on which they arise. In situations of conflicting rights, party opportunism, and interacting behavior, it is difficult to formulate solutions that do not make reference to the ordinary (primary level) set of rights and rules. Thus, it is often more effective to frame ‘abuse of rights’ in terms of what one can do with rights rather than formulate the right to make it resistant to abuse.
We distinguish three scenarios at the intersection of equity and tort:
(i) tort law itself contains a second-order element to deal with problems such as coming to the nuisance;
(ii) equity solves an inadequacy of tort law, such as by reformulating privity, which is then incorporated into tort law going forward; and
(iii) equity maintains a limited but open-ended capacity to counteract inadequacies of tort law, especially involving hard-to-foresee manipulation of rules and conflicts of rights.
With the increasing fusion of law and equity, it has been difficult to maintain this second-order equitable function, but nowhere more so than at the equity-tort interface. Many of the interventions of equity, especially into areas of wrongful interference, invite redescription as torts, and have in fact induced courts to recognize new torts, for better and worse. On our account, this reformulation into tort is appropriate only where a problem is amenable to delineation in terms of general rights and fails where a degree of open-endedness is necessary to deal with party opportunism and new types of conflict. We also consider the diffusion of ‘flattened’ equitable notions into primary-level tort law, often in the form of balancing tests, which have in many ways rendered tort less coherent, stable, and law-like than is desirable.

Legal directives – whether laws, regulations, or contractual provisions – can be written along a spectrum of specificity, about which behavioral and legal scholarship present conflicting views. We hypothesized that the combination of specificity and monitoring promotes compliance but harms performance and trust, whereas the combination of specificity and good faith enhances both the informative goal-setting aspects of specificity and people's sense of commitment. To test these hypotheses, we used a 2x2x2 experimental design in which participants were instructed to edit a document with either general or detailed instructions, with a reference to good faith or without it, and with a review of the work or without it. Participants could engage in various levels and kinds of editing, allowing us to distinctly measure both compliance and performance. When participants require information and guidance, as in the case of editing, we found that specificity increases performance relative to the vague standard condition. We discuss the characteristics of the regulatory frameworks in which our findings are especially relevant.

Equitable defences are the front line of controversy over fusion. Because law and equity offer a range of defences that partially overlap and the rationale for matching equitable defences to equitable remedies is at least as obscure as the rationale for separate equitable remedies, conventional wisdom holds that the more one can fuse the equitable defences into the law the better. In this chapter I argue that equity roughly reflects a distinct function - a safety valve that operates at a higher (meta) level over the rest of the law and that responds to problems of high uncertainty and variability. These characteristic problems include opportunism and multipolar conflicts. From a functional point of view, some of the special treatment of equitable defences makes sense, and puzzling patterns in this area receive an explanation and some justification. Even the adaptation of some equitable defences into the law dovetails with a dynamic picture of the equitable function.

In his important article, Benito Arruñada draws out the significance of sequential exchange for property rights and traces inadequacies in the economics of property rights to its overly contractual focus, to the exclusion of multiple transactions on the same asset. In this comment, I argue that although Arruñada's problem is a genuine one, it is part of a larger inadequacy in the economic analysis of property rights: property institutions have to manage complexity stemming from many kinds of interactions, making it problematic to focus solely on local interactions. Modular structures in property, including legal ‘things’ themselves, serve to manage this complexity. The larger problem of complexity allows us to set sequential exchange in its proper context.

Functional and interpretive theories of private law appear to differ greatly. For functionalists, an external theory should capture real-world results in terms of efficiency, distributive justice, or some other functional criterion, leaving the morally-infused concepts immanent in the law as an intermediate epiphenomenon. Functionalists tend to downplay the role of concepts and doctrines, especially those couched in the moral terms used by participants in the legal system – legislators, judges, and laypeople. By contrast, the interpretivist seeks first and foremost to be true to the moral self-understanding of the law, which necessarily includes the concepts and rules of private law as expressed by those inhabiting the law.
In this paper, we argue that the conflict between external and internal perspectives in private law is misunderstood – and is both exaggerated and underplayed. Both external and internal perspectives pay too little attention to how the “micro” level of individual, even bilateral, interaction relates to the “macro” level of society and the law as a whole. We will show that both perspectives overlook the resources they could employ to explain how the micro and macro are connected: in their different ways, external and internal perspectives do not draw out the connection between local simplicity and generalization. In a nutshell, both perspectives could converge on a picture of private law in which locally simple structures of bilateral rights and duties scale up to produce more complex structures at the level of society.
We suggest that functionalists should take seriously the moral norms that are immanent in private law – these norms are central to the functioning of private law as a system. Without these modular components, private law can be intractably complex. Accordingly, we propose an inclusive functionalism, one that takes these moral norms at face value. These moral norms perform a crucial function of managing the otherwise intractable complexity of the interactions between parties governed by private law. We also propose an inclusive interpretivism, which is more open to functional considerations involving simplicity. Private law must avoid intractable complexity if it is to function properly, and this calls for a simplicity criterion: interpretivists should look for moral norms that are both simple and generalizable.
Once theorists recognize this point of convergence – on norms that are simple and generalizable – it becomes clearer what is at stake in private law disputes. Resolving private law’s conceptual structure at the middle level leaves open foundational questions. What grounds private law? Distributive justice, efficiency, or perhaps a mix of other values? Likewise, we can now better assess interactions between systemic, society-level goals and micro- or mid-level considerations. Should contract law be adjusted so that it has different distributive effects? Should property law be reformed so that it responds differently to fairness concerns, or to human flourishing? These and other questions can only be assessed properly once we have taken into account the way that private law operates as a system.

In this book chapter, we argue that the distinction between "structure" and "style" is important in understanding the similarities and dissimilarities in common and civil law property. Structure is the functional form the law employs to protect people’s use interests, whereas style is a manner of delineating entitlements that is characteristic of a particular legal culture. The same structure of property can be implemented in a number of styles. For transaction costs reasons, property systems under the two traditions (common and civil laws) are similar and have to be similar. Their styles today, as is well known, are quite different, due to their different histories and path dependence.
To underpin our point that it is critical to look beyond property styles to understand the economic nature of property, we closely examine mortgage (called hypothec in civil law countries). The styles of mortgage/hypothec cannot be more different. Several countries consider mortgage a property right; several others delineate it as a contract; while some others view it as neither property nor contract. We demonstrate that mortgage/hypothec, like other, uncontroversial property interests, contains the three essential elements of property. Thus, in terms of structure, mortgage/hypothec is a property right in all jurisdictions, despite the wide variety of styles in the civil and common law systems.

Despite the fusion of law and equity and the apparent demise of equity as a distinct system, this Article argues that equity is a distinct decision making mode within a legal system. Private law relies on formal structures of rights and rules that can be exploited and abused by opportunists. The possibility of strategic manipulation of the information available to other parties and to courts furnishes a rationale for a second-order safety valve on the formal law. In the Anglo-American tradition this anti-opportunism safety valve corresponds roughly to a major strand of equity jurisprudence. The Article shows that an equitable safety valve is to be found in both traditional equity theory and as a theme in equity, from the maxims to defenses to remedies to procedure. The Article explains and partially justifies the equitable safety valve as an ex post higher-order intervention aimed at a problem of measurement and uncertainty: law needs protection against opportunistic distortion and misuse of probabilistic information used by parties and courts. The importance of equity suggests a rethinking of “actuarialist” assumptions in conventional law and economics about stable and unbiased probabilistic information being available to parties and courts. Opportunists can be regarded as entrepreneurs in doing bad who exploit uncertainty. Once the function of equity as an anti-opportunism device is understood, many jurisprudential debates, especially those revolving around formalism and contextualism, can be seen to be lacking an appreciation of hybrid decision making that equity makes possible. Equity as an anti-opportunism safety valve provides an attractive way out of some thorny dilemmas.

Henry E. Smith, Property, Equity, and the Rule of Law, inPrivate Law and the Rule of Law 224 (Lisa Austin & Dennis Klimchuk eds., 2015).

Categories:

Civil Practice & Procedure

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Property Law

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Disciplinary Perspectives & Law

Sub-Categories:

Private Law

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Legal Theory & Philosophy

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Type: Book

Abstract

Property law and equity appear to be enemies. The generality and stability of property law stands in some tension with ex post invocations of fairness and morality. This chapter argues that the conflict is overblown, and that equity protects both property and the rule of law against opportunistic evasion. In the face of potential opportunism, equity helps maintain the general, stable structures within property called for by the rule of law. Likewise, the rule-of-law criteria themselves are formal and can be evaded opportunistically. Prevention of substantive evasion of the rule of law requires reference to norms outside the formal law, in a form of macro equity, thus pointing to some limits of formalism. Just as moral and information cost theories tend to converge at the level of legal doctrine, so too formal law and natural justice can be seen to point in similar directions at the level of the law as a whole.

This Chapter offers a bottom-up account of possession that builds on salience-based accounts of conventions and on the economics of property rights. Possession is a first cut at a legal ontology in an overall modular architecture of property. The legal ontology divides the world up into persons and things, and establishes associations between persons and things. These associations will be in the interest of use, and so possession will usually require stylized duties of abstention on the part of other potential users. Depending on the nature of the group, the resources, and the universe of possible uses, duties of abstention can be implemented though norms of exclusion or governance of particular uses. What counts as a “thing” emerges from a combination of possession and accession, and so these aspects of property form a basic module, which serves as a basic default regime that can be displaced by more refined rules of title and governance. Possessory customs tend to be formalized into law, and yet for reasons of information cost, basic notions of possession retain their importance in many, especially informal, contexts. From the basic modular architecture many of the puzzling features of possession receive an explanation.

Fiduciary law is both celebrated as unbound by rules and deplored as unprincipled. Moralists see in fiduciary law a fixed and mandatory system, even as legal economists and contractarians have cast fiduciary law as the ultimate set of defaults to fill in incomplete contracts. Like general equity, out of which it grew, modern fiduciary law suffers from the hard times the theory of equity has fallen into, and for the same reasons. This chapter argues that a functional theory of equity – of equity as a safety valve aimed at countering opportunism – captures the character of fiduciary law. Fiduciary relationships, in which someone undertakes to act on another’s behalf by using discretion, carry more than the usual potential for opportunism. In the equitable solutions to opportunism based on proxies and presumptions, fiduciary law gets its main features. Like equity but in a more sweeping and often more categorical way, fiduciary law sets the presumption against the fiduciary when certain proxies are triggered. Thus, in situations of undisclosed conflict of interest the presumption of opportunism arises even without regard to the substance of the deal. For self-dealing likewise the presumption arises in an almost indefeasible way. Like equity generally, fiduciary law features a constrained residuum of open-endedness to deal with new and creative ways of being opportunistic. The theory of equity as targeting potential opportunism unifies the best aspects of traditional and modern theories of fiduciary law, and helps explain why fiduciary law has become so disparate and contested after the fusion of law and equity. Cut off from the special rationales of equity, fiduciary law itself threatens to become too expansive or too narrow and hidebound – like equity generally. Finally, the functional theory of equity as anti-opportunism helps explain the similarity of fiduciary law to another much misunderstood area of private law – unjust enrichment – and the relation between the two. The chapter concludes with some remarks about fiduciary law within the overall architecture of private law.

In this contribution to a volume on the work property scholarship of Thomas Merrill, I will show how an account of property as the law of things completes the picture of property, putting the right to exclude in proper perspective. Contra Merrill, the right to exclude is not the sine qua non of property, and the main features of property cannot be derived from the right to exclude. Nonetheless, I will argue that Merrill is right to search for a unifying theme in property and that the relevant thread is the mediation of legal relations through things. From the role of the thing in depersonalizing and formalizing property relations, we can see when the right to exclude and closely related notions of possession are – and are not – important. Private law deals with the complex interactions of members of society, and a first cut at managing potential conflict is to carve the world into modular things, in tangibles or intangibles, and associate them with people through the norms and the law of property. More complex aspects of property from governance strategies to entity property build off of the legal thing. At the heart of property is the thing.

This chapter considers a type of reductionism in property theory, that of a certain kind of anti-conceptualism under which property is not to be conceived of in terms of general concepts like the fee simple or the right to immediate, exclusive possession, but is rather to be understood and applied as a series of rules or norms to be applied on a case-by-case basis. It argues that identifying the important role that concepts play as intensions — modes of presenting particulars in the world — explains some dilemmas in property theory and paves the way for a better type of theory that combines the best of conceptualism and realism, formalism and contextualism, functionalism and moralism, and even reductionism and holism. It analyzes the perennial problem in property theory of the nature of in rem rights.

Property has long played a central role in political and moral philosophy. Philosophers dealing with property have tended to follow the consensus that property has no special content but is a protean construct — a mere placeholder for theories aimed at questions of distributive justice and efficiency. Until recently there has been a relative absence of serious philosophical attention paid to the various doctrines that shape the actual law of property. If the philosophy of property is to be more attentive to concepts lying between broad considerations of political philosophy and distributive justice on the one hand and individual rules on the other, what in this broad space needs explaining, and how might we justify what we find? This book aims to fill this gap in the philosophical analysis of private law. This is achieved here by revisiting the contributions of philosophers such as Hume, Locke, Kant, and Grotius and revealing how particular doctrines illuminate the way in which property law respects the equality and autonomy of its subjects. Secondly, by exploring the central notions of possession, ownership, and title, and finally by considering the very foundations of conceptualism in property.

In this paper, we argue that the notion of equity as a safety valve on the law can be seen as part of the law’s response to the problem of opportunism. We define equity as the use of a more flexible, morally judgmental, and subjective mode of legal decision making that roughly corresponds with historical equity. We distinguish opportunists as agents who have unusual willingness and ability to take advantage of necessary imperfections in the law. We present a simple contracting model that captures the role of equity as a safety valve, and show how it can solve problems posed by opportunists. In our model, a simple but imperfect formal legal regime is able to achieve first best in the absence of opportunists. But when opportunists are added, a more flexible regime (equity) – specifically, one that denies damages to parties who exploit contractual gaps – can be preferred. However, equity is also vulnerable to being used opportunistically by the parties it intends to protect. For this reason, we show that it is often preferable to limit equity, reserving it for use only against those who appear sufficiently likely to be opportunists. Our model generates intuitive comparative statics that describe the optimal expansiveness or restrictiveness of equity.

The Coase Theorem is widely regarded as pointing to the importance of positive transaction costs for the analysis of economic institutions. Various interpretations of the Coase Theorem regard transaction costs as some set of impediments to contracting, or more broadly, as the costs of providing institutional solutions to conflicts over resource use. The abstract nature of the Coasean hypothetical tends to promote an abstract notion of property as a thin entitlement: a right in a designated person to take certain actions or derive value from a set of resource attributes. On this view, property is like a collection of tiny contracts. The property rights furnished by actual property law are much more coarse grained than this, and property is correspondingly “incomplete” for transaction costs reasons. Property and contract are substitutes in some situations, but they often are not interchangeable—because of Coasean transaction costs.

In his pioneering work on transaction costs, Ronald Coase presupposed a picture of property as a bundle of government-prescribed use rights. This picture is not only not essential to what Coase was trying to do, but its limitations emerge when we apply Coase’s central insights to analyze the structure of property itself. This leads to what we term the Coase Corollary: in a world of zero transaction costs the nature of property does not matter to allocative efficiency. But as with the Coase Theorem itself, the real point is the implication for a positive transaction cost world: we need to subject the notion of property to a comparative institutional analysis. Because transaction costs are positive, it is no accident that property is defined in terms of things as a starting point, that uses are grouped under exclusion rights, and that in rem rights are widely employed: these features of property receive a transaction cost explanation. Simple lumpy packages of property rights motivated by transaction costs form an important baseline that furnishes presumptive answers to bilateral use conflicts. A more thoroughly Coasean approach points back to a picture of property more like the traditional one furnished by the law.

Tort law presents a puzzle from an information cost point of view. Like property, its duties often avail against others generally, but unlike property it is appears not to be standardized and is more subject to judicial innovation. This essay argues that torts, like property, employs modular structures to manage the complexity of interactions between actors. Both property and torts solve the information cost problem with “in rem” rights in similar ways, by chopping up the world of interactions between parties into manageable chunks - modules - that are semi-autonomous. Instead of employing “things” to achieve modularity, tort law employs other strategies to limit information costs, by hiding information and making tort law less context-dependent than one might expect from a “law of actions.” The features of tort law emphasized by noneconomic theories of tort law - corrective justice, civil recourse, and natural rights - can be seen as managing the complexity of tort law. These include tort’s bilateral structure, the content of duties, and proximate cause. As in property, a heavy reliance in tort law on simple moral norms, which are easy to communicate and self-enforce, receives a partial explanation in terms of information costs. Economic analysis and broadly moral theories of torts turn out to be closer together at the descriptive level than is usually thought.

This short essay written for a broad audience addresses the problems that are at the center of current debates in academic and policy circles about the patent system. Most current patent reform proposals are designed to give officials and courts more power to weaken or eliminate ‘‘unworthy’’ patents and take primary aim at so-called patent trolls. This essay argues that in light of the rapid, and excessive, changes that have already occurred in the courts, what patent law needs is a tweaking of existing safety valves and processes - not opening the floodgates to more discretion and uncertainty.

Community custom has played a limited but important role in the law of property. In addition to a few major historic examples such as mining camp rules and whaling, property law sometimes relies on community custom, for example in adverse possession, nuisance law, and beach access. This Article proposes an informational theory of custom in property law. Custom is subject to a communicative tradeoff in the law: all else being equal, informationally demanding customs require an audience with a high degree of common knowledge. General customs already known throughout society do not require much extra publicity from the law, and the law can easily draw on such customs. By contrast, customs that vary by community raise the question of the need for processing by non-expert audiences, i.e., outgroup dutyholders and government officials. This tradeoff helps explain the differential receptiveness to various customs and the process by which they are formalized if they are adopted into the law. The information-cost theory suggests that enthusiasts and skeptics of custom have both tended to ignore this process. The theory is then applied to some suggestive evidence from grazing customs and the pedis possessio doctrine in mining law, under which miners have pre-discovery rights to the spot being worked. Finally, the information-cost theory of custom sheds some light on the history and controversies over the numerus clausus (standardization and limitation of the set of basic property forms) and on the question of baselines of property entitlements in the law of takings.

Copyright law may not be the answer, but what is the question? Dotan Oliar and Christopher Sprigman explore an example of a norm system—the one among stand-up comedians against joke theft—and show why it is likely superior to use of copyright to protect rights in jokes. In the course of their study they document both how formal copyright law is unsuited to protecting comedic material and what type of norm system, enforced by other comics and booking agents, has sprung up in its stead. From a property point of view, the likely bi-causal relationship between the development of the antiplagiarism norm and the rise of narrative, observational, and social commentary-style comedy out of earlier vaudeville and post-vaudeville styles is now, thanks to Oliar and Sprigman, one of the better documented cases of Demsetzian development we have. Oliar and Sprigman also argue that for all its dangers of mob justice and extreme simplicity, the norm system does protect investments in developing comedic material and is likely more effective and desirable than an enhanced copyright law that might well crowd out the norms system.

This Article applies an information-cost theory of property to water law. Because of its fluidity, exclusion is difficult in the case of water and gives way to rule of proper use, i.e., governance regimes. Looking at water through this lens reveals that prior appropriation employs more governance and riparianism rests more on a foundation of exclusion than is commonly thought. The development of increasing amounts of exclusion and governance are both compatible with a broadly Demsetzian account that is sensitive to the nature of the resource. Moreover, hybrids between prior appropriation and riparianism are not anomalous. Exclusion strategies based on boundaries and quantification allow for rights to be formal and modular, but this approach is particularly challenging in the case of water and other fugitive resources. The challenges of exclusion that water and other fugitive resources present often lead to a semicommons in which elements of private and common property both coexist and interact.

The relationship between property and morality has been obscured by three elements in our intellectual tradition. First is the assumption, which can be traced to Bentham, that property is a pure creature of law. An institution assumed to be wholly dependent on law for its existence is unlikely to be infused with strong moral content. Second is the related tradition, also Benthamite, of examining questions about property law from a utilitarian perspective. Utilitarianism is, of course, a moral theory. But in its modern applications, based on price theory and cost-benefit analysis, it adopts a framework largely indifferent to questions of individual rights and distributive justice, which many consider the hallmarks of a moral perspective. Third is the tradition, stronger perhaps in academic circles than in popular thought, that associates property with immorality. Starting with Proudhon's slogan that "property is theft,"' and building through Marx and Engels with their call for the abolition of private property,4 this tradition has put property on the defensive in the minds of those drawn to thinking of public policy in moral terms.

The Telecommunications Act of J996 divides entitlements to network elements between incumbents and recent entrants. This Article analyzes this mandatory sharing regime as a semicommons, a property regime which combines interacting elements of private and common property. The tele-semicommons exhibits problems of strategic behavior and requires complex governance rules to abate them. These problems are particularly acute when they impede needed change in the governance regime. The Article therefore suggests a greater role for sunset provisions in the mandatory sharing regime.

Self-help and the law's response to it lie at the center of a system of property rights. This has become all the more apparent as questions of property - and whether to employ property law at all - have arisen in the digital world. In this Article, I argue that self-help comes in different varieties corresponding to different strategies for delineating entitlements. Like property entitlements more generally, the law does not regulate self-help in as detailed a fashion as it could if delineation were costless. Both property entitlements and self-help show far less symmetry and a far lesser degree of tailoring than we would expect in a world in which we did not face delineation costs of devising, describing, communicating, and enforcing the content of rights and privileges to use resources.